Justice Antonin Scalia and Criminal Justice Cases Christopher E

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Kentucky Law Journal

Volume 81 | Issue 1 Article 5

1992 Justice Antonin Scalia and Criminal Justice Cases Christopher E. Smith University of Akron

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Recommended Citation Smith, Christopher E. (1992) "Justice Antonin Scalia and Criminal Justice Cases," Kentucky Law Journal: Vol. 81 : Iss. 1 , Article 5. Available at: https://uknowledge.uky.edu/klj/vol81/iss1/5

This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. Justice Antonin Scalia and Criminal Justice Cases

By CHRISTOPHER E. SMrI*

INTRODUCTION During the 1980s and early 1990s, the United States Supreme Court underwent a dramatic shift in its composition. Republican Presidents Reagan and Bush had the opportunity to replace five retiring justices with appointees Sandra Day O'Connor,' Antonin Scalia, 2 Anthony Kennedy, 3 David

* Associate Professor of Political Science, University of Akron. A.B. 1980, Harvard University; M.Sc. 1981, University of Bristol (England); J.D. 1984, University of Tennessee; Ph.D. 1988, University of Connecticut. I am grateful for the assistance of Scott P. Johnson of The Ohio State University and Linda Fry, Brigette Nunn, and William Smith of the University of Akron. I For example, while O'Connor's predecessor, Justice Potter Stewart, authored an important civil rights precedent that recognized the Thirteenth Amendment as a basis for congressional power to forbid discrimination by private entities, Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), O'Connor joined the other conservatives in seeking reconsideration of congressional power to regulate private discriminatory conduct. See Stuart Taylor, Court, 5-4, Votes to Restudy Rights in Minority Suits, N.Y. Tmoa, Apr. 26, 1988, at Al. O'Connor ultimately joined a five-member majority that preserved, but sharply narrowed, the construc- tion of a Thirteenth Amendment-based statute against discrimination. See Patterson v. McLean Credit Union, 491 U.S. 164 (1989). The Court's decision was ultimately reversed by congressional enactment of the 1991 Civil Rights Act, which clarified and broadened protections against discrimination by private entities. Andrew Rosenthal, Reaffirming Commitment, Bush Signs Rights Bill, N.Y. Ta.m, Nov. 22, 1991, at Al, All. 2 Chief Justice Warren Burger endorsed affirmative action by the federal government that reserved contracts for minority business enterprises in Fullilove v. Klutznick, 448 U.S. 448 (1980), but the justice appointed upon Burger's retirement, Antonin Scalia, has been a consistent critic of affirmative action both before and after his appointment to the Supreme Court. See Antonin Scalia, The Diseaseas Cure, 1979 WAsH. U. L.Q. 147 (written long before his Supreme Court appointment); Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 677 (1987) (Scalia, J., dissenting) ("Mhe only losers in the [affirmative action] process are the [white males] of the country.... The irony is that these individuals- predominantly unknown, unaffluent, unorganized-suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent."). 3Although Justice Lewis Powell provided support for both abortion rights, see City of Akron v. Akron Ctr. for Reproductive Health, 462 U.S. 416,420-21 n.l (1983), and affirmative action, see Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), his successor, Anthony Kennedy, has joined, see Webster v. Reproductive Health Servs., 492 U.S. 490 (1989), or KENTUCKY LAW JOURNAL [VOL.. 81

Souter, 4 and Clarence Thomas 5 who generally have more conservative judicial philosophies than their predecessors.6 The al- tered composition of the Supreme Court has led to significant

authored opinions critical of the Supreme Court's decisions supporting both issues. See Metro Broadcasting, Inc. v. FCC, 110 S. Ct. 2997, 3044 (1990) (Kennedy, J., dissenting). 4 Justice William Brennan, "the leading liberal Justice," Linda Greenhouse, Brennan, Key Liberal, Quits Supreme Court; Battle for Seat Likely, N.Y. Tnsas, July 21, 1990, at Al, A7, was replaced by David Souter, whose first term performance on the Supreme Court made clear that he "quickly became a supportive member of the contemporary Court's conservative majority." Christopher E. Smith & Scott P. Johnson, Newcomer on the High Court: Justice David Souter and the Supreme Court's 1990 Term, 37 S.D. L. Rnv. 21, 29 (1992). During his first term, Souter provided the decisive fifth vote in seven criminal justice decisions against the assertions of individuals' rights decisions that surely would have gone the other way if Brennan had still been on the Court. See id. at 29-31; Wilson v. Seiter, 111 S. Ct. 2321 (1991) (testing constitutionality of conditions within prisons according to subjective standard assessing officials' intentions, rather than objective assessment of the conditions themselves); Harmelin v. Michigan, 111 S. Ct. 2680 (1991) (finding no constitutional proportionality problems when state applies mandatory life-without-parole sentence for first time offender convicted of possessing 650 grams of cocaine because such punishment is not cruel and unusual in constitutional sense); Schad v. Arizona, 111 S. Ct. 2491 (1991) (allowing no reversal on due process grounds for trial judge's failure to instruct jury on lesser included offenses in capital case); Peretz v. United States, 111 S. Ct. 2661 (1991) (finding no Article III problem when, despite the absence of specific statutory authority, U.S. magistrate judges conduct voir dire for felony juries when defendants consent); County of Riverside v. McLaughlin, Ill S. Ct. 1661 (1991) (finding no constitutional violation when arrestees are held in jail for 48 hours prior to an appearance before a magistrate for a determination of probable cause to pursue charges if such proceedings are held as soon as reasonably feasible); Mu'min v. Virginia, Ill S. Ct. 1899 (1991) (holding defendant's right to fair trial not violated when judge refused to question jurors during voir dire about specific contents of news reports to which they had been exposed); Arizona v. Fulminante, 111 S. Ct. 1246 (1991) (holding that a coerced confession may be "harmless error" that does not require new trial). The newest justice, Clarence Thomas, has yet to establish a clear decisional pattern on the Court, but his public statements indicate that he will be more conservative than his predecessor, Thurgood Marshall. See Maureen Dowd, Conservative Black Judge, Clarence Thomas, Is Named to Marshall's Court Seat, N.Y. Tmm, July 2, 1991, at Al, A15 ("Judge Thomas, who has risen in Republican ranks as an advocate of bootstrap conservatism, would present a striking change from Justice Marshall, a civil rights pioneer and an anchor of the Court's declining liberal faction."). In criminal justice cases during his initial term, Justice Thomas stood out as the most conservative of all the justices by writing strong dissenting opinions opposing the majority's decisions to permit a prisoner who was beaten by guards to allege Eighth Amendment violations, see Hudson v. McMillian, 112 S. Ct. 995 (1992), and to permit a new trial for an escaped convict whose death penalty may have been influenced by irrelevant information about his membership in the racist Aryan Brotherhood prisoner organization. See Dawson v. Delaware, 112 S. Ct. 1093 (1992). In Hudson, Thomas's position was even more conservative than that of the Bush Administration, which had "joined prisoners' rights groups in urging the Justices to overturn the 1990 [circuit court] ruling." Linda Greenhouse, High Court Defines New Limit on Force By a Prison Guard, N.Y. Tmm, Feb. 26, 1992, at Al, A16. 6 See Christopher E. Smith, The Supreme Court in Transition:Assessing the Legitimacy of the Leading Legal Institution, 79 Ky. L.J. 317, 318-19 nn.3-5 (1990-91). 1992-93] JUSTICE SCALIA changes in decisions affecting controversial issues7 such as abortion,8 freedom of religion, 9 and affirmative action.' 0 Not surpris- ingly, the Supreme Court's emerging conservative majority, usually composed of the recent appointees plus incumbents Chief Justice William Rehnquist and Justice Byron White, has made (and continues to make) a variety of changes in judicial decisions affecting the criminal justice system." Although Justice Antonin Scalia is the only recent appointee who replaced a thoroughly conservative justice (Chief Justice Warren Burger), Scalia's presence on the Court has not been merely a continuation of a dependable conservative vote. Scalia has been ' 2 described as the Court's "most provocative justice' 1 because of his strongly-held views and strident, influential opinions. Unlike his immediate predecessor, Chief Justice Burger, who was sometimes criticized for his inability to provide intellectual influence over the Court's opinions,'" Scalia has quickly become renowned for his

See generally Christopher E. Smith, The Supreme Court's Emerging Majority: Re- strainingthe High Court or Transforming Its Role?, 24 AxaoN L. REv. 393 (1990) (illustrating the position that the Supreme Court's contemporary conservative majority engages in "judicial activism" by quickly altering precedents concerning a variety of issues). I See, e.g., Webster v. Reproductive Health Servs., 492 U.S. 490 (1989) (approving statement that "life begins at conception" in state statute that regulated the performance of abortions by doctors and public hospitals). 9 See, e.g., Employment Div., Dept. of Human Resources v. Smith, 494 U.S. 872 (1990) (holding that right to free exercise of religion does not excuse individual from obeying state laws regulating behavior). ,0 See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (holding that city and state governments may not implement affirmative action in public contracting unless they can demonstrate that they were guilty of discriminatory acts in need of remedy). " The reduction of the scope of constitutional protections for criminal defendants and prisoners that began during the Burger Court era and has continued through the Rehnquist Court era is attributable to both the conservative philosophical orientations of recent Supreme Court appointees and increased skepticism among the justices about the continued risks of misbehavior by criminal justice officials. See Christopher E. Smith, Police Professionalism and the Rights of CriminalDefendants, 26 Cma. L. BtLL. 155 (1990). ," David A. Kaplan and Bob Cohn, The Court's Mr. Right: Scalia Can Call a Tune, But Who Will Follow?, N-wswEEc, Nov. 5, 1990, at 62, 67. ,1 One apparent reason for Burger's limited impact on the Court's decisions was an absence of the skills needed for effective leadership. A former clerk for Justice Powell said that Burger "does not have the gift of leadership or concil- iation." Burger was accused of bullying the Court and of attempting to control decisions through illegitimate means. According to one Justice, "all too damned often the Chief Justice will vote with the majority so as to assign the opinion, and then he ends up in dissent." Some colleagues reacted negatively to [Burger's] efforts at leadership. LAWRENCE BAuM, THE SuPRnmi COURT 165 (4th ed. 1992) (citations omitted). KENTUCKY LAW JouRNAL [VoL. 81 innovative thinking and influential opinions.' 4 Scalia is often influential even when his views do not immediately prevail with a majority on the Court: "[Scalia's] willingness to discard accepted rules and refashion them in light of his own constitutional vision made his impact greater than his rather low success rate [as the author of majority opinions] might suggest."' 5 Soon after Scalia was appointed, one leading legal scholar iden- tified Scalia and Rehnquist as potential leaders in any Rehnquist Court effort to reverse the precedents established during the Warren Court era: "The powerful impact and considerable persuasiveness of Rehnquist and Scalia may have an important impact on unknown future justices."' 16 Now that these "future justices"-Kennedy, Sou- ter and Thomas-are participating in Supreme Court decisions, it is especially important to assess Scalia's impact. This Article will discuss Scalia's participation in cases affecting criminal justice issues, as well as his relevant opinions. Because he is such an influential voice on the contemporary Court, it is useful to examine how the themes in his judicial opinions affect criminal justice issues and how he has decided such issues since his appointment to the Court in 1986.

I. TRENDS AND VOTING PATrERNS

A. From the Warren Court to the Rehnquist Court The Warren Court made a significant impact on the criminal justice system by interpreting the Bill of Rights in new ways that provided greater protection for criminal defendants and convicted offenders. As described by one scholar:

" Justice Scalia "possesses a judicial philosophy and political vision that extend far beyond simple allegiance to a few policy positions.... [I]tis a vision that limits the checking function of the Court in constitutional politics, enhances legislative and executive and agency power, and subjects rights to definition by the majority in control of government." Richard A. Brisbin, Jr., The Conservatism ofAntonin Scalia, 105 PoL. Sci. Q. 1, 29 (1990). Scalia's assertiveness in advancing his views in opinions is unique on the contemporary Court: "Scalia in his first three years on the Court wrote between fifteen and nineteen concurring opinions each year, more than any other justice." DAVID M. O'BRIEN, SToRm CENTER: THE SUPREME CoURTmN AMmcAN PoLmcs 317 (2d ed. 1990). 1 Linda Greenhouse, Supreme Court Dissenters:Loners or Pioneers?, N.Y. TIMEs, July 20, 1990, at B7. 26 Yale Kamisar, The "Police Practice" Phases of the Criminal Process and the Three Phases of the Burger Court, in THE BURGER YEARS: RioHTS AND WRONGS iN no SUPREaME COURT, 1969-1986, 167 (Herman Schwartz ed., 1988). 1992-93] JUSTICE SCALIA

Between 1961 and 1969 the Warren Court accomplished what previous courts had stoutly resisted: it applied virtually all the procedural guarantees of the Bill of Rights to the states' administration of criminal justice.... The result was a nationalized Bill of Rights that dimmed the local character of justice by applying the same restraints to all criminal proceedings, both state and 7 federal.' Supreme Court decisions of this era affected the policies and practices of law enforcement agencies' and courts alike. 19 During the 1970s, President Richard Nixon responded to the perception that the Court had gone too far in protecting criminal defendants and in interfering with criminal justice agencies20 by attempting to appoint new justices who would take a narrower view of constitutional rights. For example, Warren Burger was nominated to be Chief Justice specifically because Nixon expected that Burger would implement the President's goal of "law and order" judicial policies.2' Although Nixon appointed four justices (Burger, Black- mun, Rehnquist, and Powell) who were initially more conservative than their predecessors,2 "contrary to expectations, there was no

1 DAVID J. BODENHAMER, FAiR TRIAL: THE RIGHTS oF AccusED IN AmERiCAN HISTORY 113 (1992). ," See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966) (holding that police must inform suspects of their rights upon arrest); Mapp v. Ohio, 367 U.S. 643 (1961) (upholding application of "exclusionary rule" to improper searches and seizures by state and local police). 1, See, e.g., Gideon v. Wainwright, 372 U.S. 335 (1963) (requiring states to provide counsel for indigent criminal defendants facing possible felony incarceration). " Nixon's acceptance speech when he became the Republican presidential nominee focused on the problems of law and order: And tonight it's time for some honest talk about the problem of order in the United States. Let us always respect, as I do, our courts and those who serve on them, but let us also recognize that some of our courts in their decisions have gone too far in weakening the peace forces as against the criminal forces in this country. Let those who have the responsibility to enforce our laws, and our judges who have the responsibility to interpret them, be dedicated to the great principles of civil rights. But let them also recognize that the first civil right of every American is to be free from domestic violence. And that right must be guar- anteed in this country. Richard M. Nixon, Acceptance Speech (August 8, 1968), reprinted in LEE EPs=an & THo.tAs G. WALKER, CONSnUoNAL LAW FOR A CHANGING AMuCA RiGHTs, LmERTIEs, AND JusTICE 335 (1992). 21 HENRY J. ABRArm,, Jusncas AND PansESNims: A POimrTcAL HIsTORY OF AppoiNr- mENTs TO Tm SupREm COURT 297-98 (2d ed. 1985). 2 For example, Earl Warren presided over the Court during the era in which it made many landmark decisions concerning the rights of criminal defendants, while his successor, Warren Burger, sought to remove the judiciary from involvement with policy-shaping decisions KENTUCKY LAW JOURNAL [VoL. 81 counterrevolution in the law governing defendants' rights. Upon Burger's retirement in 1986, the major criminal procedure decisions of the Warren Court era remained essentially intact." 3 During the Burger Court era (1969-1986), the justices narrowed some protections for criminal defendants2 and declined to expand established rights,2 but they did not erase landmark decisions. that would affect law enforcement agencies and other governmental entities: Revealing differences between Warren and Burger emerged in separate public interviews each man gave, coincidentally, two years after assuming the chief justiceship. In 1955 Warren maintained that the Court had a crucial responsibility to renew and fulfill the highest ideals of the Constitution, most notably the expressions of justice found in the Bill of Rights.... A more specific concern was reforming criminal process, a system riddled with "procedural flaws and anachronisms," to achieve truly equal justice under law. Burger in 1971 saw a more limited role for the Court. The justices sat simply to decide cases, not to make rules or create new law.... Significantly, the Bill of Rights merited not a word in the interview. D. BODENHAMER, supra note 17, at 129-30 (citations omitted). Harry Blackmun was appointed by Nixon to fill the seat vacated by the resignation of Justice Abe Fortas, a justice whose decisional patterns placed him in "an extremely cohesive bloc" with fellow liberals Earl Warren, William Brennan, and Thurgood Marshall. STEPHEN L. WASBY, TiE SuPREma COURT IN Tim FEDERAL JUDICIAL SYsTEM 250 (3d ed. 1988). Blackmun initially decided cases in a consistently conservative manner, joining, for example, Chief Justice Burger "in 90 percent of the 1970 Term's nonunanimous cases and in all but one criminal procedure case." Id. Later during the 1970s, and particularly after he became subject to attacks by conservatives because of his opinion in Roe v. Wade, 410 U.S. 113 (1973), Blackmun joined the Court's liberals with increasing frequency. See ABaPAHAm, supra note 21, at 304-05. William Rehnquist replaced Justice John Harlan. Although Harlan was a moderate member of the Warren Court who urged judicial restraint, "he would not stand for governmental shortcuts in the name of law and order. Thus, practices such as wiretapping and eavesdropping, illegal invasions of human privacy, incursions on freedom of expression, and racial segregation met his determined opposition." Id. at 261. In contrast, Rehnquist was "ideologically even to the right of Nixon [and] Burger.... [and was] a vocal critic of the Warren Court's posture on criminal justice, a confirmed law-and-order man, [and] a devoted supporter of strong national security." Id. at 315. Rehnquist's conservative judicial philosophy has made him less likely than any other justice to support assertions of constitutional rights by individuals. See infra note 28 and accompanying table. See also Sun DAvis, JUsTIcE REHNQUIST AND Tm CoNsTITUToN (1988) (analyzing Rehnqulst's decisions to show that he rarely supports individual claimants in nonunanimous cases). During much of the Warren Court era, Justice Hugo Black was a consistent member of the liberal majority coalition. WAsBy, supra, at 250. His successor, Lewis Powell, however, was "[c]autious and conservative, yet moderate and nondoctrinaire by inclination and commitment .... comfortable in the Court's center." ABRAmAM, supra note 21, at 309. 23 ABRAHAM, supra note 21, at 309. 24See, e.g., United States v. Leon, 468 U.S. 897 (1984) (explaining "good faith" exception to the exclusionary rule); New York v. Quarles, 467 U.S. 649 (1984) (finding "public safety" exception to requirement of Miranda warnings). See, e.g., Rhodes v. Chapman, 452 U.S. 337 (1981) (holding that double-celling does not constitute unconstitutional overcrowding in prisons designed with single-person cells); Scott v. Illinois, 440 U.S. 367 (1979) (finding no constitutional right to counsel for indigent defendants facing only fines for minor offenses). 1992-93] JUSTICE SCALI

"judicial activism7' is most pronounced in the alteration of established precedents affecting such issues as employment discrimination 26 and abortion.27 As this Article demonstrates, however, the Rehnquist era majority has also accelerated the pace of change by altering and refining decisions affecting criminal justice issues.-

B. Rehnquist Court Decisional Patternsand Opinion Authorship How has Justice Scalia participated in the Court's Rehnquist era criminal justice decisions? As Table 1 indicates, 21 Scalia has consistently joined the other conservative justices as a dependable vote against assertions of rights by criminal defendants and prisoners.

Table 1: Percentage of Justices' Decisions Against Individuals in Nonunanimous Criminal Justice Cases, 1986-1992

Decisions Against Individuals Number in which the Justice Percentage Justice Participated Rehnquist 91% (163) Scalia 86 (163) Powell 79 ( 39) Kennedy 78 (111) O'Connor 78 (163) White 77 (163) Thomas 75 ( 20) Souter 69 (49) Blackmun 35 (163) Stevens 24 (163) Brennan 9 (110) Marshall 6 (140)

26After the appointment of Justice Kennedy tipped the balance of power on the Supreme Court in favor of the conservatives, the newly-solidified five-member conservative majority acted sua sponte to limit the scope of racial discrimination suits seeking damages for racial harassment in the execution of employment contracts. See Patterson v. McLean Credit Union, 491 U.S. 164 (1989); see also Christopher E. Smith, The Supreme Court and Ethnicity, 69 OR. L. Rnv. 797, 823-36 (1990). " In Webster v. Reproductive Health Servs., 492 U.S. 490 (1989), "[Justices] Scalia, Rehnquist, White, and Kennedy indicated that they [were] prepared to reverse the [sixteen- year-old Roe v. Wade, 410 U.S. 113 (1973)] precedent as soon as they secure[d] the needed fifth vote." See Smith, The Supreme Court in Transition, supra note 6, at 340. Figures tabulated and calculated by author from cases reported in Supteme Court Reporter, 1986 through 1992. KENTUCKY LAW JOURNAL [VOL. 81

Despite the consistency of Scalia's voting pattern on criminal justice issues, he does not necessarily vote in a "lock-step" fashion with other conservatives in every case. Subsequent sections of this Article will show that Scalia's independent views lead him to disagree with his conservative colleagues and to join the liberal justices in cases concerning particular issues. Even when he shares the other conservatives' views about the proper outcomes for cases, Scalia frequently distinguishes his views from those of his conservative colleagues by writing concurring opinions. As the presentation in Table 229 of justices' relative productivity in writing opinions illustrates,30 the magnitude of Scalia's impact upon the Court is due in large part to his eagerness to assert his viewpoints in concurring and dissenting opinions. The average number of opinions authored by Scalia during the 1990 and 1991 terms, 41.5, was exceeded only by the 46 of Justice John Paul Stevens. Significantly, most of Stevens' opinions were dissents, and it is apparent that, as one of the remaining liberal justices, Stevens is defending the.precedents that he sees being narrowed or eliminated by the Court's conservative majority. In contrast, by writing twice as many concurring opinions as any other justice, Scalia is obviously attempting to explain his viewpoints in order to clarify the way he differs from his conservative colleagues in analyzing issues. As Table 2 further illustrates, Scalia also enjoys the distinction of being the only justice to have written more concurring than dissenting opinions during the 1990 and 1991 terms. Thus, more than most other justices, Scalia consciously seeks to shape the Court's reasoning by meticulously delineating his judicial views even while agreeing with the result reached by the majority.3'

29 See Table 2 infra p. 195. "Figures tabulated by author from cases reported in Supreme Court Reporter, 1990 Term. See Scott P. Johnson & Christopher E. Smith, David Souter's First Term on the Supreme Court: The Impact of a New Justice, 75 JUDICATURE 238, 241-42 (1992) (discussing analytical methodology and opinion authorship patterns on the Supreme Court during the 1990 Term). 1, See O'BREEN, supra note 14, at 316 ("Justices usually write separate concurring opinions to explain how the Court's decision could have been otherwise rationalized.... Concurring opinions may be required because of a 'greater institutional interest in the forth- rightness of differing justices' views."') (citation omitted). 1992-931 JUSTICE SCALIA

Table 2: Average Number of Opinions Authored, 1990 and 1991 Terms

Total Majority Majority Concurring Dissenting opinions opinions votes, opinions opinionsB authoredc Rehnquist 13 97 1.5 7 21.5 White 15 96 4 8 27 Marshall 12 71 1 20 33 (1990 Term Only) Blackmun 15.5 77.5 6.5 10.5 27.5 Stevens 13 72 8 25 46 O'Connor 15 92.5 6 8 29 Scalia 11.5 87.5 16.5 13.5 41.5 Kennedy 12 96 8 7.5 27.5 Souter 10.5 95 3.5 3 17 Thomas 9 67 6 7 22 (1991 Term only) Mean 12.33 86.94 6.39 10.67 29.39 A The number of times a justice voted in the majority (including concurring votes). B Opinions are counted as dissents whether the justice dissented in part or in whole. C Majority opions + concurring opinions + dissenting opinions.

II. SCALIA's THEMES WrrHN C w NAL JUSTICE DECISIONS Scalia has distinguished himself on the Supreme Court by his consistent reiteration of a number of themes. 2 He has emphasized strict separation of powers among the branches of government,33 adherence to the text of the Constitution 34 and statutes, 35 and limits on the number of cases brought before the Supreme Court and other

See Brisbin, supra note 14, at 5-22. 1 See Christopher E. Smith, Justice Antonin Scalia and the Institutions of American Government, 25 WAKE Fosr L. REv. 783, 788-94 (1990). 34See George Kannar, The Constitutional Catechism of Antonin Scalia, 99 YAME L.J. 1297, 1305-08 (1990). 11See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REv. 621, 623-24 (1990). KENTUCKY LAW JOURNAL [VoL. 81 federal courts.36 Each of these themes has emerged in cases affecting the criminal justice system. A. Separation of Powers According to early analyses of Scalia's decisions as an Associate Justice, "dedication to the doctrine of separation of powers may be his strongest present doctrinal commitment, aside from his rejection of affirmative action. Compromise of his principles on the basic structure of government under his view of the Constitution is un- likely."3 7 Scalia has a long history of advocating rigid separation of powers. As an assistant attorney general in the Ford Administration, he testified before Congress concerning such issues, and he co- authored the American Bar Association's amicus brief opposing the legislative veto.38 He also published articles on the importance of separation of powers. 39 As a judge on the United States Court of Appeals for the District of Columbia Circuit, Scalia was widely rumored to be the author of the special district court's unsigned per curiam opinion4O that struck down the automatic budget balancing provisions in the Graham-Rudman-Holings Act,41 a decision that was later supported by the Supreme Court. 42 Scalia's fundamental belief is that in the American Constitutional system, individual rights and personal liberty are protected not by the Bill of Rights, but rather by a system of separation of powers that prevents the excessive accumulation of power within any single branch of government. 43 According to Scalia, "it is the structure of government, its constitution, in the real sense of that word, that ultimately preserves or destroys freedom. The Bill of Rights is no more than ink on paper unless ... it is addressed to a government which is so constituted that no part of it can obtain excessive power." 44

See Smith, Justice Antonin Scalia, supra note 33, at 794-96, 801-04. 17 Michael Patrick King, Justice Antonin Scalia: The First Term on the Supreme Court 1986-1987, 20 RUTGERS L.J. 1, 67 (1988). BARBARA HnIsoN CRmAG, CHADSIA: TnE STORY OF AN EPIC CONSTmUTONAL STRUGGLE 53-57, 185 (1988). "See Antonin Scalia, The Doctrine of Standing as an Essential Element of Separation of Powers, 17 SUFFoLK U. L. REa. 881 (1983); Antonin Scalia, The Legislative Veto: A False Remedy for System Overload, 3 REG. 19 (Nov.-Dec. 1979). Synar v. United States, 626 F. Supp. 1374 (D.D.C. 1986). 41 James G. Wilson, Constraints of Power: The Constitutional Opinions of Judges Scalia, Bork, Posner, Easterbrook, and Winter, 40 U. MAm L. REv. 1171, 1201 (1986). 41Bowsher v. Synar, 478 U.S. 714 (1986). 41See Smith, Justice Antonin Scalia, supra note 33, at 792-94. " Remarks of Justice Antonin Scalia at Washington, D.C., Panel Discussion on Sepa- ration of Powers (C-SPAN broadcast, Nov. 15, 1988). 1992-931 JUSTICE SCALIA

In the period immediately preceding Scalia's appointment as an Associate Justice, the Supreme Court had taken a relatively rigid approach to separation of powers by striking down congressional legislative veto power over executive branch actions45 and by inval- idating automatic budget balancing legislation.4 After Scalia's arri- val, however, the Court adopted a flexible approach to separation of powers in two criminal justice-related cases. The Court endorsed the constitutionality of the use of "independent counsel" to investigate and prosecute misconduct by executive branch officials47 and approved the authority of the multi-branch U.S. Sentencing Com- mission, which creates federal sentencing guidelines. 4 The majority was suddenly willing to permit deviations from strict separation of powers principles in order to develop mechanisms to address important issues. Scalia was the lone dissenter in both cases, and he issued strident warnings to his colleagues in his dissenting opinions. 49 Concerning the office of independent counsel, which deviates from the tradi- tional practice of placing prosecutorial powers completely under the control of the executive branch, Scalia wrote: "By its shortsighted

" INS v. Chadha, 462 U.S. 919 (1983). Chief Justice Burger declared that "[tihe Constitution sought to divide the delegated powers ... into three defined categories ... to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility." Id. at 951. 46 Bowsher v. Synar, 478 U.S. 714 (1986). Chief Justice Burger wrote that "[n]o one can doubt that Congress and the President are confronted with fiscal and economic problems of unprecedented magnitude, but 'the fact a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution."' Id. at 736 (quoting INS v. Chadha, 462 U.S. 919, 944 (1983)).

47 Morrison v. Olson, 487 U.S. 654 (1988). Chief Justice Rehnquist wrote that: Notwithstanding the fact that the counsel is to some degree "independent" and free from Executive supervision to a greater extent than other federal prosecutors, in our view, these features of the Act [permitting removal by the Attorney General 'for cause' and making the Attorney General initiate the original appointment] give the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties. Id. at 696. 4' Mistretta v. United States, 488 U.S. 361 (1989). Justice Blackmun wrote that "[in this case, the 'practical consequences' of locating the Commission within the Judicial Branch pose no threat of undermining the integrity of the Judicial Branch or of expanding the powers of the Judiciary beyond constitutional bounds." Id. at 393. 49 A scholarly analysis of the separation of powers issue labeled Scalia's arguments as "most subtle and compelling," but ultimately concluded that Scalia's arguments were "not so weighty as to overcome the burdens of text and history in divining Congress's powers over government organization." Peter M. Shane, Independent Policymaking and PresidentialPower: A ConstitutionalAnalysis, 57 GEo. WASH. L. Rav. 596, 624-25 (1989). KENTUCKY LAW JOURNAL [VOL. 81 action today, I fear the Court has permanently encumbered the Republic with an institution that will do it great harm."50 With regard to the U.S. Sentencing Commission, which is comprised of members from various branches of government, Scalia predicted that the long-term consequences of the majority's flexible approach 51 to separation of powers "will be disastrous.1 While Scalia adheres to a uniquely rigid view of separation of powers,5 2 the other justices have demonstrated "pragmatic acceptance of innovations, which, despite blurring the lines of authority, 5 3 address a difficult problem facing the government. 1 On the independent counsel issue, the other justices apparently learned from the Watergate and Iran-Contra scandals that executive branch officials cannot always be trusted to investigate and prosecute criminal wrongdoing by their colleagues, especially if the President is impli- cated in the misdeeds.54 Thus, the governing system needed an innovation (i.e, independent counsel) to handle this problem because it was inadequately addressed by existing mechanisms. The Court's endorsement of the multi-branch sentencing commission may rest upon the justices' determination that judicial involvement in developing sentencing guidelines would encourage acceptance and support by the judges who must implement them. The other justices demonstrated an inclination toward pragmatism by developing innovations designed to address genuine problems in the criminal justice system: investigation and prosecution of executive branch officials and equitable, consistent criminal sentencing. Scalia, however, because of his rigid, principled views, was unwilling to take a pragmatic approach, even when the governing system had difficulty coping with specific problems that may require innovative remedies. 55

Morrison v. Olson, 487 U.S. at 733 (Scalia, J., dissenting). " Mistretta v. United States, 488 U.S. at 427 (Scalia, J., dissenting). $2See, e.g., Richard J. Pierce, Jr., Morrison v. Olson, Separation of Powers, and the Structure of Government, 1988 Sup. CT. Rav. 1 (analyzing the implications of Scalia's unique perspective on separation of powers). " CHRISTOPHER E. SMnrH, PoLIncs IN CONSTITUTIONAL LAW: CASES AND QUEsTIONS 12 (1992). See Christopher E. Smith & Scott P. Johnson, PresidentialPardons and Accountability in the Executive Branch, 35 WAYNE L. REv. 1113 (1989). 11 In regard to the need for an independent counsel, for example, unlike the other justices, "Justice Scalia erroneously presumes that the voters will always have access to information about presidential actions [in order to keep the President accountable for a failure to investigate and prosecute wrongdoing in the executive branch], despite the fact that executive officials can control the flow of information through their ability to (mis)classify documents as 'secret."' Id. at 1122. 1992-93] JUSTICE SCALIA

B. Textualism Scalia's rigidity has also been noted in his interpretation of the Constitution and federal statutes. In statutory interpretation, Scalia has been labeled the leader of the movement toward "the new textualism," which "posits that once the Court has ascertained a statute's plain meaning, consideration of legislative history becomes irrelevant."" Although Scalia has yet to persuade a majority of justices to adopt his views, he is gaining influence and, simultane- ously, forcing members of Congress to rethink their approach to creating new statutes. For example, Scalia influenced the development of a crime bill in Congress during 1991: When the House Judiciary Committee was drafting an anti- crime bill two weeks ago, some members suggested resolving a dispute by putting compromise language into a committee report, which accompanies a bill to the floor. But Barney Frank, D-Mass., warned off his colleagues with 5 7 just two words: "Justice Scalia."

Scalia has advanced his textualist approach to statutory interpretation in criminal justice cases as well. For example, in a case concerning the omission of a precise definition of "burglary" in a sentence enhancement statute for repeat offenders, Scalia's concurring opinion chided his colleagues for their reliance on legislative history to determine the statute's meaning: "I can discern no reason for devoting ten pages of today's [majority] opinion to legislative history, except to show that we have given this case close and careful consideration."58 As the following section on constitutional interpretation will discuss, Scalia's adherence to textualism can appear, at times, to overcome any conservative predisposition he may possess to decide cases against defendants.5 9 For example, Scalia's approach to stat-

- Eskridge, supra note 35, at 623. 17 Congress Keeps Eye On Justices As Court Watches Hill's Words, 49 CoNG. Q. WEaKLY REP. 2863 (Oct. 5, 1991). Taylor v. United States, 495 U.S. 575, 602 (1990) (Scalia, J., concurring in part and concurring in judgment). Justices are predisposed toward particular outcomes because their decisions are heavily influenced by policy preferences that derive from their attitudes and values: "[P]olicy preferences almost certainly provide the best explanation for differences among justices in decisional behavior .... The views of Supreme Court justices on policy issues, of course, derive from the same general sources as political attitudes generally [e.g., family socialization, schooling, mass media, and career experiences]." BATm, supra note 13, at 145-46. Justices' policy KENTUCKY LAW JOURNALV [VoL. 81 utory interpretation presumably influenced his decision to part company with fellow conservatives Rehnquist, Souter, White, and O'Connor and join, without issuing a concurring opinion, a majority opinion by Justice Marshall stating that the federal sentencing statute requires judges to notify defendants before departing upward from the established sentencing range. 60 The "pro-defendant" outcome of the case goes against Scalia's usual decisional pattern, but his interpretation of the statute's text apparently overcame any conservative inclination to support the federal prosecutors' arguments. The most significant effect of Scalia's textualism in his criminal justice decisions has been in the realm of constitutional interpretation. Scalia does not decide such cases in the manner of the other conservative justices, who are inclined to balance competing interests or advance policy preferences in deciding criminal justice cases against defendants and prisoners. 61 Because Scalia is "[s]olid in his conviction that the text or texts can answer almost every question, he has not been hesitant to apply his view of their meaning on behalf of criminal defendants whenever the constitutional language or the ' language of authoritative precedent seems to dictate that he do so." 2 Thus, despite his consistency in deciding criminal justice cases against the claims of defendants and prisoners, 6 Scalia's textualist approach to constitutional interpretation has provided the basis for notable deviations from the decisions of his conservative colleagues.

1. Nonunanimous Decisions in Which Scalia Joined the Liberals Although Scalia's general decisional pattern is one of supporting law enforcement officials and limiting the scope of individual rights, his adherence to textualism has led him to side with the liberal justices in a dozen nonunanimous criminal justice cases affecting

preferences in criminal justice cases are discernible in their strategic opinion writing. See Christopher E. Smith, Bright-Line Rules and the Supreme Court: The Tension Between Clarity in Legal Doctrine and Justices' Policy Preferences, 16 Omno N.U. L. Rrv. 119, 124-37 (1989). 0Bums v. United States, 111 S. Ct. 2182, 2183 (1991). 61 By contrast, for example, in creating a "public safety" exception to the "exclusionary rule," Rehnquist asserted that "the need for answers to questions in a situation posing a threat to public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination." New York v. Quarles, 467 U.S. 649, 657 (1984). 2 Kannar, supra note 34, at 1321. 6 See Table 1, supra p. 193. 1992-93] JUSTICE ScALIA such issues as double jeopardy, 4 right to counsel,6s and self-incrimination. 6 Scalia has been most conspicuous in joining the liberal justices to support criminal defendants' rights in Confrontation Clause cases.

a. Confrontation Clause In Cruz v. New York,67 Scalia, joined by the four most liberal justices-Brennan, Marshall, Stevens, and Blackmun-wrote the majority opinion in a Confrontation Clause case that deeply divided the Court.s Scalia's opinion held that a non-testifying co-defendant's confession incriminating the defendant is not admissible at their joint trial. In Coy v. Iowa,69 Scalia, joined by Brennan, White, Marshall, Stevens, and O'Connor in the majority opinion, declared that a defendant accused of raping two minor girls had his Sixth Amendment Confrontation Clause rights violated by the placement of a one-way mirror/screen between the defendant and the victims during the victims' testimonies in court.70 Justice Blackmun's dissenting opinion adopted the argument that the Court should balance competing public policies in attempting to reduce the trauma of courtroom confrontations for children who are victims of sex crimes.71 Subsequently, when a majority of justices (O'Connor, Rehnquist, Kennedy, Blackmun, and White) approved the use of one-way closed circuit television broadcasts for taking children's testimony during child sex abuse cases,72 Scalia wrote a dissent, joined by Justices Brennan, Marshall, and Stevens, which emphasized the clear text of the Sixth Amendment: "Seldom has this Court failed so conspicu- ously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion. The Sixth Amendment pro-

6 Jones v. Thomas, 491 U.S. 376, 388 (1989) (Scalia, J., dissenting). Scalia joined a dissent objecting to the Court's holding that respondent's conviction for both robbery and first degree felony murder on a single offense was not double jeopardy. 6Arizona v. Roberson, 486 U.S. 675, 676 (1988) (holding that a suspect who shows that he wishes to deal with police only through counsel cannot be interrogated about other offenses). " Braswell v. United States, 487 U.S. 99 (1988). Scalia joined a dissent to the holding that because collective entities have no Fifth Amendment rights, nor do their employees. Id. at 119 (Kennedy, J., dissenting). 481 U.S. 186 (1987). " Id. at 187. 487 U.S. 1012 (1988). 7 Id. at 1013. 11Id. at 1025 (Blackmun, J., dissenting). See Kannar, supra note 34, at 1329-34. 7 Maryland v. Craig, 110 S. Ct. 3157 (1990). KENTUCKY LAW JOURNAL [VoL. 81 vides, with unmistakable clarity, that '[iln all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the ' 73 witnesses against him.'

b. Search and Seizure and Due Process In search and seizure cases, Scalia has generally joined the conservatives in loosening restrictions on law enforcement officers, but in two notable cases his textualist approach led him to side with the liberals in supporting individuals' rights. In National Treasury Employees Union v. Von Raab,74 Scalia joined the dissent of Bren- nan, Marshall, and Stevens, who objected to the Court's endorsement of drug testing for Customs Service employees when there is no basis for suspecting them of wrongdoing. In his dissenting opinion, Scalia recognized that the scope of Fourth Amendment rights has frequently been limited when they are balanced against competing interests. 75 Thus, Scalia would not require individualized suspi- cion for drug testing of railroad employees involved in accidents or for searches of prisoners within correctional institutions. 76 However, Scalia condemned the Customs Service's drug testing practices as "a kind of immolation of privacy and human dignity in symbolic opposition to drug use." According to Scalia, "Itihe impairment of individual liberties cannot be the means of making a point; ... symbolism, even symbolism for so worthy 4 cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search.' '78 Similarly, Scalia wrote the majority opinion for the liberal justices in a five-to-four decision refusing to invoke the "plain view doctrine' 79 after police officers improperly moved stereo equipment to look at serial numbers during a warrantless search for weapons in an apartment from which shots had been fired. 0 In writing that "there is nothing new in the realization that the Constitution sometimes insulates the criminality of the few in order to protect the

7Id. at 3171 (Scalia, J., dissenting) (quoting U.S. CoNsT. amend. VI). -4489 U.S. 656 (1989). 71 Id. at 679 (Scalia, J., dissenting). 76 Id. at 680 (discussing Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602 (1989), decided on the same day as National Treasury Employees' Union). 'n Id. at 681. 79 Id. at 687. 79 Arizona v. Hicks, 480 U.S. 321, 326 (1987). "Id. at 323. 1992-93] JUSnCE SCALI privacy of us all," 8' Scalia rejected the "Burger-style policy analyses" normally preferred by the conservatives to reach results favoring law enforcement officials. During the 1990-91 Term, Scalia joined the three most liberal justices, Marshall, Blackmun, and Stevens, in opposing the Court's decision permitting arrestees to be held for up to forty-eight hours before a probable cause hearing. 3 Scalia's blistering dissent emphasized his belief that the "Court's constitutional jurisprudence ... alternately creates rights that the Constitution does not contain [e.g., abortion] and denies rights that it does [e.g., confrontation of accusing witnesses]."84 According to Scalia, the majority's decision on jailing suspects "repudiate[s] one of [the Fourth Amendment's] core applications so that the presumptively innocent may be left in jail. "85

2. Overall Pattern of Conservatism The foregoing examples are not intended to alter the generally accepted classification of Scalia as a consistently conservative member of the Supreme Court, as indicated by Scalia's voting pattern in Table 1.16 Instead, these examples show that Scalia is willing to deviate from the conservative bloc and, indeed, to criticize his conservative colleagues sharply, when their policies of deference to law enforcement officials clash with his notions of clearly stated rights within the text of the Bill of Rights. Scalia's general pattern of conservatism can be illustrated by comparing the foregoing ex- ceptional examples with other cases concerning similar issues in which Scalia joined the conservatives. For example, despite the few cases in which Scalia has joined the liberals on search and seizure issues, he authored the controversial decision that limited Fourth Amendment rights by endorsing warrantless entry of a home when the police are given permission to enter by someone whom the officers reasonably but erroneously believe to possess authority over the premises.87

81Id. at 329. ' Kannar, supra note 34, at 1327-28. County of Riverside v. McLaughlin, 111 S. Ct. 1661, 1671 (1991) (Scalia, J., dissenting). Id. at 1671. Id. at 1677. 6See Table 1, supra p. 193. Illinois v. Rodriguez, 497 U.S. 177 (1990). KENTUCKY LAW Jou[RNAL [VOL. 81

In another example, Scalia joined a liberal decision protecting defendants from police questioning when they are already repre- sented by counsel for different pending charges.88 However, Scalia subsequently joined the conservative majority in a five-to-four decision that refused to give retroactive application to this protection.89 In that case, despite indications from the physical evidence that some person other than the defendant committed the murder, a mentally retarded defendant received the death penalty after making incriminating statements while being improperly questioned by police outside of the presence of counsel. 90 Even in a case involving the Confrontation Clause, the issue that appears to bring out Scalia's most consistent disagreements with conservatives, he indicated that his views were not as broad as those of the most liberal justices by writing a majority opinion that permitted the admission of a non-testifying co-defendant's confession when the trial court had instructed the jury not to use the confession against the defendant and edited the confession to remove references to the defendant. 9

C. Limitations on Access to the Courts One goal advanced by Scalia is to reduce the number of cases heard by the U.S. Supreme Court and other federal courts. In his first major address to the American Bar Association after his appointment to the Supreme Court, Scalia bemoaned the "continuing deterioration" of the federal judiciary caused by excessive caseload burdens.Y He argued that the federal judiciary was intended to be a "natural aristocracy ... of ability rather than wealth." 93 Scalia proposed that specialized courts be created to handle specific categories of cases, such as Social Security disability appeals, in order to divert these cases from the federal court system 4 His desire to reduce litigants' access to the federal courts is also reflected in his

" Arizona v. Roberson, 486 U.S. 675 (1988). "See Butler v. McKellar, 494 U.S. 407 (1990). "A scientific analysis of pubic hair found on the rape-murder victim's body indicated that it did not come from the man convicted and sentenced to death for the crime. See Ruth Marcus, Waiting Forever on Death Row, WASH. PosT NAT'L W'cY ED., June 18-24, 1990, at 11-12. Richardson v. Marsh, 481 U.S. 200 (1987). See Stuart Taylor, Scalia ProposesMajor Overhaul of the U.S. Courts, N.Y. Tmms, Feb. 16, 1987, at 1. 93 Id. 91Id. at 12. 1992-931 JUSTICE SCArIA emphasis on various jurisdictional devices to limit the number of cases brought before the federal judiciary. Thus, for example, "Scalia champions the doctrine of standing as a way of restricting [the number of cases eligible for federal judicial action]." 95 In criminal justice cases, Scalia has been a consistent supporter of the recent decisions that have limited the opportunities for convicted offenders to file appeals and habeas corpus petitions. For example, Scalia joined the other conservatives to deny a right to counsel for death row inmates seeking to file habeas corpus petitions,96 require that claims be raised in the initial petition even when relevant information about those claims is improperly hidden by state officials at the time that the first petition is ffled, 97 and declare that violations of state procedural rules, even when committed through an attorney's error, deprive prisoners of any opportunity to raise claims in federal habeas petitions. 98 Scalia also authored a 1991 decision that refused to lift a state procedural bar to raising claims on a federal habeas petition. 99 These decisions are part of the conservatives' effort to create new rules governing habeas corpus by judicial action after Chief Justice Rehnquist failed in his efforts to have similar changes enacted legislatively by Congress.1°° On his own, Scalia has acted to reduce the Supreme Court's burden of death penalty appeals. Before 1991, Justice White was the Circuit Justice for the Fifth Circuit Court of Appeals, covering Texas, Louisiana, and Mississippi-states that apply the death pen-

" Brisbin, supra note 14, at 7. Murray v. Giarratano, 492 U.S. 1 (1989). McCleskey v. Zant, 111 S. Ct. 1454 (1991). " Coleman v. Thompson, 111 S. Ct. 2546 (1991). "Ylst v. Nunnemaker, 111 S. Ct. 2590 (1991). 1w [Chief Justice] Rehnquist appointed a committee headed by retired Justice Lewis Powell to propose reforms for the processing of appeals in capital cases. Rehnquist subsequently submitted the proposals for consideration by the Judicial Conference of the United States.... At its September 1989 meeting, the judges on the Judicial Conference decided to defer judgment on the proposals until their March 1990 meeting in order to discuss the proposals more fully with the other judges in their home circuits. After the September meeting, Rehnquist forwarded the proposals to Congress on behalf of the judiciary without waiting for discussion and endorsement by the other members of the Judicial Confer- ene .... Subsequently, at its March meeting, the Judicial Conference rejected Rehnquist's favored reforms and forwarded an alternative proposal to Congress which did not place such strict limits on opportunities for death row inmates to contest their convictions. SmrrH, PoLmcs IN CONSTrruTIONAL LAw, supra note 53, at 94-95. See also David G. Savage, Virginian Nears Execution Despite Doubt Against Guilt, L.A. Tas, May 13, 1992, at Al. KENTUCKY LAW JOURNAL [VOL. 81 alty more often than most. 10 1 White routinely granted extensions to the 90-day filing deadline for death row inmates who did, not have attorneys to prepare their submissions for Supreme Court review.102 In February of 1991, however, Chief Justice Rehnquist shuffled the justices' circuit responsibilities and made Scalia the Circuit Justice overseeing the Fifth Circuit. Scalia immediately announced that he would not give extensions for the filing deadlines, even for prisoners who lacked professional assistance and thus were forced to represent themselves in seeking Supreme Court review. 103 Because indigent prisoners are often incapable of adequately representing themselves because of illiteracy, learning disabilities, limited education, psycho- logical problems, and the inherent complexity of legal research and the judicial process,10 Scalia's efforts to limit the flow of cases may produce especially harsh consequences for some prisoners who might otherwise assert claims that are worthy of review.

III. NOTABLE CRIMINAL JUSTICE DECISIONS AND OPINIONS

A. Majority Opinions Scalia has written a number of opinions that helped to shape important developments in the Supreme Court's determination of criminal justice issues. In regard to the death penalty, Scalia was influential in determining whether convicted offenders could be executed for crimes committed while they were juveniles. When the Supreme Court narrowly decided that an offender could not be executed for a murder committed while he was only fifteen years of age,105 Scalia dissented and declared that individualized consideration of the offender's maturity and culpability rather than chronological age should determine whether the death penalty is applicable.1c6 Subsequently, Scalia wrote the Court's opinion in Stanford v. Ken-

",'See U.S. Death-Row Population, FACTS ON FIE WORLD NEws DIoST, Apr. 23, 1992, at 289, col. A3. i- Linda Greenhouse, Scalia Tightens Policy on Death Penalty Appeals, N.Y. Thmss, Feb. 22, 1991, at B16. 1w Id. 104 For example, more than half of the prisoners in Florida's prisons were found to read at or below the sixth grade level. See Christopher E. Smith, Examining the Boundaries of Bounds: Prison Law Librariesand Access to the Courts, 30 How. L.J. 27, 34-35 (1987) (citing Hooks v. Wainwright, 536 F. Supp. 1330, 1338-44 (M.D. Fla. 1982)). "I Thompson v. Oklahoma, 487 U.S. 815 (1988). 116Id. at 858 (Scalia, J., dissenting). 1992-93] JUSTICE SCALIA

tucky, °7 which declared that imposition of the death penalty for crimes committed at age sixteen or seventeen did not violate the Eighth Amendment.'0 The dissenters noted, however, that one of the juveniles whose death sentence was at issue waived his right to counsel, presented no mitigating evidence, and was found incom- petent to waive his rights by a state-appointed forensic psychiatrist, and thus did not actually fit Scalia's supposed criteria of individualized evaluation in being "mature and culpable beyond his years."' 9 These opinions by Scalia were characteristic of his strong and consistent support for deference to state officials concerning the application of the death penalty. Scalia also authored the majority opinion in Wilson v. Seiter,110 which drastically changed the judicial standard of review for prisoners' civil rights cases." In cases challenging conditions of confinement in correctional institutions as violating the Eighth Amendment, the Supreme Court initially endorsed judicial intervention when an examination of the "totality of conditions" revealed "wanton and unnecessary infliction of pain" or "unquestioned and serious dep- rivation of basic human needs."" 2 In other words, judges were to apply an objective standard and order remedies if prison conditions did not meet the standards of the Eighth Amendment. Scalia's 1991 opinion in Wilson, however, indicated that cases challenging conditions of confinement were to receive judicial remedies only when there was "deliberate indifference" on the part of corrections officials."' Thus, the courts will no longer look at the conditions of confinement objectively to determine whether they meet Eighth Amendment standards. Instead, they will examine the state of mind of corrections officials subjectively to determine whether remedies are appropriate. As a result of this drastic change in standards, it now may be possible for a prison unfit for human habitation to avoid judicial intervention and remedial action even if the correctional administrator is aware of the deficiency. "We are aware and concerned about the conditions," the official might say, "but we

-- 492 U.S. 361 (1989). '0 Id. at 364. 0 Id. at 399-401 (Brennan, J., dissenting). Io111 S. Ct. 2321 (1991). See infra note 113 and accompanying text. "2 See, e.g., Rhodes v. Chapman, 452 U.S. 337, 347 (1981). "I I S. Ct. at 2323. KENTUCKY LAW JouRNAl[ [VOL. 81 simply do not have enough money to correct the problems," thus 4 showing that there is no "deliberate indifference.""1 In Harmelin v. Michigan,"5 Scalia's majority opinion declared that a Michigan law mandating a life sentence without possibility of parole for carrying more than 650 grams of cocaine did not violate the Eighth Amendment." 6 The four dissenters (White, Blackmun, Marshall, Stevens) complained that Scalia's analysis obliterated the proportionality requirement that had previously been considered part of the Eighth Amendment. According to Justice White's dissent, Scalia's reasoning would endorse a state's decision to mandate life imprisonment for parking tickets." 7 Unless the proportionality requirement of the Eighth Amendment is clarified in subsequent cases, Scalia's opinion may give states greater freedom to punish any crime in nearly any manner. B. Influence over Important Decisions Scalia's dissenting opinions in 1987118 and 1989"9 against Court decisions that narrowly precluded the use of victim impact statements in death penalty trials probably helped to lay the groundwork for the Supreme Court's 1991 decision endorsing the use of such statements. 120 Scalia noted, with candor unusual for a judicial officer, that many precedents cannot be overturned until the composition of the Court changes: "[O]verrulings of precedent rarely occur without a change in the Court's personnel.' ' 2' Despite Scalia's expressed concerns that the judiciary not be regarded as a political branch of government, 122 his statement constituted a clear acknowledgement of the underlying political influences upon the definition of constitutional law (i.e., new appointees who change the Court's political and ideological composition). Scalia provided a key vote in Arizona v. Fulminante'23 by joining a majority of justices in holding that a prisoner's confession to an

"1 See id. at 2330 (White, J., concurring in judgment) (warning that, under the majority opinion, "prison officials will be able to defeat a § 1983 action challenging inhumane prison. conditions simply by showing that the conditions are caused by insufficient funding"). I'111 S. Ct. 2680 (1991). ,16Id. at 2699. 17Id. at 2709 (White, J., dissenting). " Booth v. Maryland, 482 U.S. 496 (1987). -' South Carolina v. Gathers, 490 U.S. 805 (1989). 110Payne v. Tennessee, 111 S. Ct. 2597 (1991). ,21Gathers, 490 U.S. at 823 (Scalia, J.,dissenting). '= See Smith, Justice Antonin Scalia, supra note 33, at 796-99. 111 S.Ct. 1246 (1991). I'l 1992-93] JUSTICE SCALIA undercover police officer posing as a prisoner was "coerced" because the confession was given in exchange for a promise of protection when the prisoner feared for his safetyYl ' Scalia then switched his vote to create a different five-member majority for a decision on a separate issue within the case that the admission into testimony of coerced and therefore involuntary confessions may sometimes be considered "harmless error" immune from reversal on appeal.' 5 This dramatic change in the harmless-error doctrine as applied to involuntary confessions may foreshadow future decisions in which the conservative justices declare other improper procedures to be "harmless."6

C. Intracourt Conflict Although the foregoing examples illustrate Scalia's influence over the development of judicial decisions affecting criminal justice issues, one other opinion is notable rather than influential. Scholars have noted that the justices need to work together in order to form stable coalitions that will decide' issues in a consistent manner: "No matter how great their isolation from each other, justices have incentives to interact and work together on decisions.... In order to retain or expand [a] majority, [a justice] often is willing to change language to satisfy [other justices]."' 27 Scalia is distinctive among the justices for his manifest unwillingness to compromise. As one observer noted, "[r]ather than bend or compromise in the interest of forging a majority, Scalia seems content to lob verbal grenades from the sidelines."'' 2 Thus, Scalia has gained a reputation for attacking other justices vigorously in his opinions through sarcasm, ridicule, and cataclysmic warnings of doom. 129 Scalia chose a 1990 criminal justice

224 Id. at 1249. 12 Id. at 1261. '16See id. at 1257 ("mhe majority offers no convincing reason for overturning our long line of decisions requiring the exclusion of coerced confessions[,] ...[but] it becomes necessary to evaluate under that ruling the admissibility of [the coerced confession at issue]."). 22 BAUM, supra note 13, at 159. 2 Tony Mauro, High Court Adjourns for Summer Intact, LEGAL Ta, s, July 9, 1990, at 10. 229 See Smith, Justice Antonin Scalia, supra note 33, at 804-09. For example, in the "right-to-die" case concerning the request of parents to remove their comatose daughter from life-support systems, Scalia condemned his eight colleagues for recognizing a due process right to refuse medical treatment. Scalia said that the other justices would "destroy" the Supreme Court by involving it in complex moral issues. Cruzan v. Director, Mo. Dep't of Health, 110 S. Ct. 2841, 2863 (1990) (Scalia, J., concurring). KENTUCKY LAW JouRNAL [VOL. 81 case 30 to launch a sarcastic and unsettling attack against Justice Marshall and, presumably, the other liberal justices whom Scalia apparently views as hyper-sensitive about issues of racial discrimination. 3 ' Scalia's majority opinion rejected a white defendant's Sixth Amendment "fair cross section" claim against a prosecutor's use of peremptory challenges to exclude African-American jurors.3 2 In dis- concertingly strong language, Scalia rejected Justice Marshall's concerns about the risks of racial discrimination: "Justice Marshall's dissent rolls out the ultimate weapon, the accusation of insensitivity to racial discrimination-which will lose its intimidating effect if it continues to be fired so randomly."'3 Scalia's statement clearly implied that concerns about racial discrimination are raised too frequently and in unwarranted situations, and that such claims have intimidated justices into voting in certain ways in order to avoid being labeled as 'racists.' This was a very strong statement, especially when considered in light of its target, the one justice who was personally victimized by racial discrimination in a segregated society 4 and even attacked by a lynch mob because of the color of his skin.Y

'" See Holland v. Illinois, 493 U.S. 474 (1990). See id. at 486.

"id. at 475. " Id. at 486. The incident was described by Thurgood Marshall and Carl Rowan during a television special on Marshall's life and career: Rowan: Thurgood Marshall had a close brush with death in 1946 when he went to Columbia, Tennessee, to defend two black men who were charged with crimes in connection with race riots. Marshall: The mob followed me out [a]cross Duck River and pulled us over and the mob was a very interesting mob. It was composed equally of state troopers and city police. And they said they had a warrant to search the car and I said, "Go right ahead." And then I told the guy with me, I said, "Hey, let's watch him, don't let him put some liquor in there," [be]cause it was a dry county. Rowan: The posse took Marshall near the banks of the river, ordering the other blacks to go into town. As Marshall neared the river, he saw people waiting for the "party." By "party" you mean "lynch party"? Marshall: Lynch party! Or something, I don't know. Rowan: But the other Black lawyers refused to go into Columbia, and the mob leaders decided there could be no hanging that day. Instead, they charged Thurgood Marshall with drunk driving. Thurgood Marshall the Man, (WUSA-TV, Washington, D.C., television broadcast, Dec. 13, 1987) (transcript on file with the Kentucky Law Journal). See also SssrrH, PoLmcs IN CoNsrrnboNAL LAW, supra note 53, at 167 ("Among members of the Supreme Court, Justice Marshall's life experiences gave him unique exposure to the problems of racial discrimination .... [H]e was the only justice to grow up as a 1992-931 JUSTICE SCALIA

Scalia's views on the substantive legal issue were ultimately rejected by a substantial majority of justices (Kennedy, O'Connor, Souter, Stevens, Marshall, Blackmun, White), who decided in 1991, over the dissents of Scalia and Rehnquist, that the Equal Protection Clause rather than the Sixth Amendment serves as the basis for protecting against racially exclusionary peremptory challenges, even against jurors of a different race than the defendant.'35 However, the appearance of Scalia's strong language in the 1990 case in an opinion joined by four other justices (Rehnquist, White, O'Connor, Kennedy) provided a strong indication of the emerging conservative majority's drastically different viewpoints and sensitivities on civil rights issues.

CONCLUSION

Although criminal justice cases have not been a primary area of emphasis in the judicial opinions of Justice Antonin Scalia, such cases provide examples of the persistent themes that appear in Scalia's decisions. Although he is one of the most consistent conservative votes against assertions of rights by criminal defendants and prisoners, Scalia has parted company with his conservative colleagues in several cases in which his textualist approach to judicial interpretation has led him to agree with outcomes favored by more liberal justices. Scalia has not received an equal share of opinion assignments in criminal justice cases, but he has managed to influence developments concerning a number of important issues. His future actions bear watching because it appears that he will be a powerful and articulate voice on the Supreme Court for decades to come. In addition, because Justice Thomas appears to decide cases in much the same manner as Scalia, 136 there is speculation that Scalia is having a direct influence over the youngest, least experienced, and potentially longest serving justice among the conservatives on the

victimized minority group member in a segregated Southern border state (Maryland); the only justice to be dragged from his car at night toward a tree with a noose by a lynch mob ...; the only justice to travel throughout the segregated South representing victims in race discrimination cases ...."). "I See Powers v. Ohio, 111 S. Ct. 1364 (1991). 116 See The Justices Scold Thomas, Tmm, Mar. 9, 1992, at 31 ("Thomas has voted with Scalia, the most conservative member of the high bench, in each of the 13 cases [Thomas] has participated in this term."). KENTUCKY LAW JouRNAL [VoL. 81 contemporary Court.17 Scalia's influence over future decisions may thus extend beyond the unique imprint of his strident opinions on recent Supreme Court jurisprudence.

'" Clarence Thomas vowed to "bring something different" to the Supreme Court, but in four months on the bench he has asked few questions in oral argument and voted in all but one case with conservative Justice Antonin Scalia. The alliance is understandable. Not only is Scalia an aggressive and articulate pros- elytizer but one of his former law clerks now works for Thomas. The clerk, NEWSWEEK has learned, exerts considerable influence over the rookie justice. Last week, for example, in a dissent that drew an unusual rebuke from the seven-member court majority in a prison case, Scalia joined Thomas in declaring that beating a manacled prisoner may not violate the Eighth Amend- ment prohibition on cruel and unusual punishment. "Thomas and Scalia are one person with two votes," complains Bob Peck of the American Civil Liberties Union. And court observers have even given them a nickname: The D.C. Duo. Thomas: Hypocritic Oath?, Nawswnmx, Mar. 9, 1992, at 6. See also Linda Greenhouse, Unusual Use of FirstAmendment Overturns a Killer's Death Sentence, N.Y. TMs, Mar. 10, 1992, at A14 ("Justice Thomas's dissenting opinion [in Dawson v. Delaware, 112 S. Ct. 1093 (1992)] was notable for the solitary position in which it placed him, without even the company of his apparent mentor, Justice Antonin Scalia.... [Dawson, concerning a jury's consideration of the defendant's rembership in the Aryan Brotherhood during death penalty sentencing proceedings] was the first case that found Justices Thomas and Scalia on opposite sides.").